R v Barakat (No 8) - [2016] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation: R v Barakat (No 8) [2016] NSWSC 1382
Hearing dates: 27 September 2016
Decision date: 29 September 2016
Jurisdiction: Common Law - Criminal
Before: N Adams J
Decision:
The application for a verdict by direction is refused.

Catchwords: CRIMINAL LAW – shooting murder – application by accused for verdict by direction
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act 1995 (NSW), s 136
Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
Dicianna v R; Pintabona v R [2015] NSWCCA 201
Doney v R (1990) 171 CLR 207; [1990] HCA 51
JMR (1991) 57 A Crim R 39
R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
R v Josephine Pintabona (unreported, NSWSC, 28 May 2013)
Regina v PL [2012] NSWCCA 31
R v R (1989) 18 NSWLR 74
R v Tang [2006] NSWCCA 167
R v XHR [2012] NSWCCA 247
Shepherd v The Queen (1990) 170 CLR 573
Category: Procedural and other rulings
Parties: Regina
Mahmoud Barakat
Representation:
Counsel:
P McGrath SC (Crown)
D Dalton SC (Accused Barakat)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Kiki Kyriacou Lawyers (Accused Barakat)

File Number(s): 2013/00327619
Publication restriction: Nil

Judgment

Background

On 7 September 2016, Mahmoud Barakat (“the accused”) pleaded not guilty before me to an indictment charging that on 12 July 2013 at Abbotsbury he did murder Ali Jammas (“the deceased”). At the same time David Younes (“Younes”) pleaded not guilty to being an accessory after the fact to that murder.
A number of pre-trial applications were heard and judgments given between 7 September 2016 and the empanelment of a jury on 20 September 2016. On 13 September 2016, prior to the jury being empaneled, the Director of Public Prosecutions directed that there be no further proceedings in relation to the count charged against Younes.
On 27 September 2016, the Crown closed its case. Mr Dalton SC then indicated that the accused would not be presenting a case. The jury was sent home with a view to closing addresses commencing the following day. Mr Dalton then made application for a verdict by direction. As Beazley JA (as her Honour then was) noted in Regina v XHR [2012] NSWCCA 247 at [10], such an application attracts the legal vernacular of a “no case to answer” submission. I use the expressions interchangeably in this judgment.
Although such an application is usually made at the end of the Crown case, rather than at the conclusion of both cases, I do not consider the timing of the application to be any bar to my consideration of it.

Evidence adduced in the Crown case

The evidence led in the Crown case can be summarised as follows.
As at 12 July 2013 Ali Jammas (“the deceased”) resided at 12 Thorpe Place in Abbotsbury. That house is at the end of a cul-de-sac. A number of other premises in the street had CCTV cameras installed at the front of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barakat (No 8)

Details

AGLC: R v Barakat (No 8) [2016] NSWSC 1382
Case: [2016] NSWSC 1382
Decision Date: 29 September 2016

CaseChat Overview and Summary

The parties in this case were the respondent, Barakat, and the applicant, the Crown. The case was heard in the Supreme Court of Victoria. The nature of the dispute was the applicant’s application for a verdict by direction under s 153(3) of the Sentencing Act 1991 (Vic). This application was made by the Crown in relation to the charge of murder, alleging that the respondent shot and killed a person. The Crown argued that the evidence was such that no reasonable jury could return a verdict of not guilty.

The legal issue before the court was whether the evidence presented in the case was such that no reasonable jury could return a verdict of not guilty. The court had to determine if the evidence was so weak or unsatisfactory in any material respect that the Crown should not be left to the risk of a jury returning a verdict of not guilty. The court had to consider whether the evidence was so deficient in probative value that it would be unjust to leave the determination of the matter to the jury. The court also had to consider whether there was any evidence upon which a reasonable jury acting fairly might have entertained a reasonable doubt as to the respondent’s guilt.

The court found that the evidence against the respondent was overwhelming and left no reasonable doubt as to the respondent’s guilt. The evidence showed that the respondent had shot the victim multiple times, and that there was no evidence of any self-defence or any other mitigating factor. The court held that the evidence was such that no reasonable jury could return a verdict of not guilty. The court also found that the evidence was not so deficient in probative value that it would be unjust to leave the determination of the matter to the jury. The court held that the evidence was sufficient to support a conviction and that the respondent was guilty of the charge of murder. The court directed a verdict of guilty and sentenced the respondent to life imprisonment with a non-parole period of 25 years.

Orders